The Michigan Supreme Court just released its opinion in People v Fackelman. In a 5-2 opinion by Justice Markman, the Court ruled that a prosecutor’s use of a non-testifying expert's report in examination of testifying experts and in jury argument violated the Sixth Amendment. Justice Young wrote a forty-one page dissent, joined by Justice Zahra.

Charles Fackelman’s teenaged son was killed in an auto accident. A year later, Fackelman drove to the house of Randy Krell, whom he blamed for his son’s death. Mr. Fackelman threatened Krell and another person with a gun. The Defendant fled, but was eventually found and committed to a hospital. While there, he was examined by a psychiatrist, Dr. Agha Shahid. In his report, Shahid diagnosed Fackelman as suffering from a single episode of major depression, without psychosis.Fackelman was charged with first-degree home invasion, two counts of felonious assault, and one count of felony-firearm. Mr. Fackelman asserted an insanity defense and called an expert witness who believed the Defendant was insane. The prosecutor also called an expert witness, who concluded that Fackelman was depressed but not legally insane. When the prosecutor examined the two expert witnesses at trial, he read significant portions of Shahid’s report, and he stressed Shahid’s opinions during his closing argument. Shahid did not testify at trial, and his report was not admitted into evidence. The jury returned a verdict of guilty but mentally ill.Fackelman appealed to the Court of Appeals, and asked that the court remand the case to the trial court for an evidentiary hearing concerning the prosecutor’s use of Shahid’s report, and whether defense counsel provided constitutionally ineffective representation. Among other things, Fackelman argued that the use of the report at trial violated his constitutional right to confront the witnesses against him, as described in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). In Crawford, the U.S. Supreme Court held that the Sixth Amendment’s Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross examination.”The Court of Appeals granted the motion to remand. After holding an evidentiary hearing, the trial court affirmed Fackelman’s convictions. The Court of Appeals then reviewed the trial court’s ruling, and affirmed Fackelman’s convictions in an unpublished per curiam opinion. The Court of Appeals held that the prosecutor properly used Shahid’s report to impeach the defense expert. While the prosecutor erred in using the report to bolster questioning of the prosecution’s expert, this error was harmless, the panel said, because there was ample other evidence to support the jury’s verdict. The appeals court also rejected Fackelman’s claim that his counsel provided constitutionally ineffective representation. Fackelman appeals. A five to two majority sided with the defense.Congratulations to my friend John Minock on an impressive win. Click here for access to the party briefs.

This is a reworked version of my post on yesterday’s Supreme Court ruling in Michigan v Bryant. An individual was shot in a gas station and told the responding police that the defendant was the shooter. The Michigan Supreme Court ruled that the statement was testimonial. Because the statement was testimonial in nature and made out of court, the Michigan Supreme Court found that the statement was inadmissible under its modern approach tot he confrontation clause.

This case should have been an easy win for the defense, but shockingly the State won. Reversing the Michigan Supreme Court, the US Supreme Court found that the statement was non-testimonial because the victim’s primary motivation was to help the police, rather than give an official statement. The Court seems to be stretching its prior ruling in Davis v Washington prior ruling to the breaking point.

Justices Scalia and Ginsburg dissented. Justice Scalia called the majority’s account of the facts of the case “so transparently false that professing to believe it demeans this institution.” “In its vain attempt to make the incredible plausible,” he went on, “today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shamble. (Justice Ginsburg’s dissent was short and less important. Because Justice Scalia is the captain (or at least the discovering archeologist of the modern confrontation clause, his scathing (and I mean scathing) dissent is particularly important. As Justice Scalia suggested, this ruling appears to be a retrenchment from Crawford. What seems particularly disconcerting is that the Court found that given the nature of the event, there was little motive for fabrication. The Court looked by analogy to the Rules of Evidence to draw this conclusion and stated that the Rules were a good guidepost. This seems like a move in the direction of Ohio v Roberts. Roberts was directly overruled by Crawford v Washington.

As Justice Scalia pointed out: “Is it possible that the Court does not recognize the contradiction between its focus on reliable statements and Crawford’s focus on testimonial ones? Does it not realize that the two cannot coexist? Or does it intend, by following today’s illogical roadmap, to resurrect Roberts by a thousand unprincipled distinctions without ever explicitly overruling Crawford? After all, honestly overruling Crawford would destroy the illusion of judicial minimalism and restraint. And it would force the Court to explain how the Justices’ preference comports with the meaning of the Confrontation Clause that the People adopted—or to confess that only the Justices’ preference really matters.” This death by a thousand cuts prediction is very troubling.

Very little is out about by the ruling so far. Hear is a link to an excellent transcript of the oral argument of the Bryant case by Attorneys Peter VanHoek of the State Appellate Defender’s Office for Richard Perry Bryant, Attorney Lori Baughman Palmer of the Wayne County Prosecutor’s Office for the State of Michigan, and Deputy Solicitor General Leondra R. Kruger for the U.S. Department of Justice. Here is a link to thebriefs of the case (middle of the page).

The New York Times has a nice analysis. Professor Collin Miller at the John Marshall Law School in Chicago has been blogging in busts about the ruling. Professor Richard Friedman the leading authority on this issue has noted the decision, but has not released his in depth analysis. His preliminary comments indicate concerns similar to Justice Scalia’s. As Orin Kerr noted over at the Volokh Conspiracy, Justice Scalia’s solo dissent (Justice Ginsburg wrote a small separate dissent) is ominous. Professor Friedman filed his own pro se amicus brief in Bryant supporting the Michigan Supreme Court. In that brief, Professor Friedman argued that the Court should look at the statement from the vantage point of the speaker, should not focus on the formality of the statement, and argued that the only theory possibly justifying admission of the statement was forfeiture. His viewpoint did not carry the day.

The State of Michigan has sought certiorari from the Michigan Supreme Court’s recent 4-3 favorable Crawford in People v Bryant, 483 Mich 132; 768 NW2d 65 (2009). Michigan v Bryant, 8 USLW 3082 (Jul 28, 2009). The key question is whether the victim’s statement was testimonial under Crawford.The majority stated that the key question is whether the declarant intended the statement to be testimonial; the dissent stated that the focus should be on the officer’s intent. The majoirty also stated that the emergency exception must be narrowly construed lest "statements reporting criminal activity or accusing others of crimes . . . always be testimonial until a suspect was in custody and unable to cause further harm."And the court refused to treat the fact of the victim's condition as creating an emergency for Confrontation Clause purposes; that, it said, would confuse "a medical emergency with the emergency circumstances of an ongoing criminal episode."

According to the Detroit News, U.S. District Court Judge Victoria Roberts on Wednesday ordered a new trial for 36-year-old Sharee Miller of Mount Morris. Roberts ruled it was wrong to allow a suicide note by Jerry Cassaday into evidence.Prosecutors say Sharee Miller persuaded Cassaday to kill her husband, Bruce. Cassaday later killed himself and left a note implicating Sharee Miller. She was sentenced to life in prison in the 1999 slaying.
Judge Roberts granted the habeas corpus because the admission of the note violated the defendant’s Sixth Amendment right to a new trial under Crawford. Genesee County prosecutor David Leyton told The Flint Journal he would urge an appeal of the judge's order.Update: For a copy of the ruling, click here.miller v stovall